| Jackson v Leung |
| 2012 NY Slip Op 06754 [99 AD3d 489] |
| October 9, 2012 |
| Appellate Division, First Department |
| Ronald Jackson, Appellant, v Anthony S.C. Leung et al.,Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Stacy R. Seldin of counsel), forAnthony S.C. Leung, respondent. Marjorie E. Bornes, Brooklyn, for Nicolas Rosillo, respondent.
Order, Supreme Court, New York County (George J. Silver, J.), entered April 14, 2011,which granted defendant Anthony Leung's motion for summary judgment dismissing thecomplaint on the ground that plaintiff did not suffer a serious injury within the meaning ofInsurance Law § 5102 (d), and order, same court and Justice, entered August 29, 2011,which, upon plaintiff's cross motion to reargue Leung's motion, adhered to its prior order, andgranted defendant Nicolas Rosillo's motion for summary judgment on res judicata grounds,unanimously reversed, on the law, without costs, the cross motion granted, and the motionsdenied.
Defendant Leung failed to meet his prima facie burden of showing that plaintiff did notsuffer a serious injury to his lumbar spine since his sole medical expert, a neurologist, did notreport the results of any range of motion testing, review the MRI film of plaintiff's spine, or offerany alternative opinion as to causation (see Perl v Meher, 18 NY3d 208 [2011]; Toure v Avis Rent ACar Sys., 98 NY2d 345, 350, 353 [2002]; McCree v Sam Trans Corp., 82 AD3d 601 [1st Dept 2011]).Moreover, defendant's neurologist acknowledged a 50% deficit in straight leg raising, whichprovides objective evidence of lumbar injury (see Brown v Achy, 9 AD3d 30, 32 [1st Dept 2004]), and did notadequately explain that finding (seeFeaster v Boulabat, 77 AD3d 440 [1st Dept 2010]). Thus, the burden did not shift toplaintiff, who, in any event, raised an issue of fact with respect thereto by submitting theaffirmation of his treating physician, who found recent limitations of range of motion in allplanes, and relied on objective evidence, including an EMG/NCS study and MRI report (see Colon v Bernabe, 65 AD3d969, 970 [1st Dept 2009]; Brown v Achy, 9 AD3d at 31-32).
Furthermore, contrary to the Supreme Court's holding, it was not necessary for plaintiff toproffer evidence of range of motion deficits contemporaneous with the accident, and, in anyevent, the physician reported that such limitations existed then (see Perl v Meher, 18NY3d at 217-218; Paulino vRodriguez, 91 AD3d 559, 559-560 [1st Dept 2012]). Defendant Leung did not raise agap in treatment argument in his motion papers (Tadesse v Degnich, 81 AD3d 570 [1st Dept 2011]), and, in anyevent, plaintiff's treating physician proffered an explanation [*2]sufficient to raise an issue of fact (see Pommells v Perez, 4 NY3d566, 577 [2005]; Jean-Louis vGueye, 94 AD3d 504, 505 [1st Dept 2012]).
The order purporting to deny plaintiff's cross motion to reargue addressed the merits and, inso doing, in effect, granted plaintiff's motion and, therefore, the appeal taken therefrom isproperly before this Court (see 21stCentury Diamond, LLC v Allfield Trading, LLC, 88 AD3d 558, 559 n [1st Dept 2011];Matter of State Farm Mut. Auto. Ins. Co. v King, 304 AD2d 390 [1st Dept 2003]). Forthe foregoing reasons, the cross motion to reargue should have been granted and, upon doing so,the order granting defendant Leung's motion denied, and defendant Rosillo's motion denied.Concur—Saxe, J.P., Sweeny, Richter, Abdus-Salaam and Román, JJ.